Full Judgment Text
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PETITIONER:
S.K. ARSED ALI & ANR.
Vs.
RESPONDENT:
S.K. FAZLE HAKANI
DATE OF JUDGMENT: 20/11/1996
BENCH:
M. M. PUNOHHI, SUJATA V. MANOHAR
ACT:
HEADNOTE:
JUDGMENT:
ORDER
The respondent filed a petition under Section of the
West Bengal Land Reforms Act for preemption in respect of
two sale deeds executed by the vendors on 22nd and 23rd
February 1977 transferring 1.70 acres of land in two plots
in favour of the appellant. The appellants resisted the
respondent’s claim for preemption on the ground that the
respondent need to have been a co-sharer in the land sold
and since he claims to have purchased sometime in the past a
portion of a plot, which was purchased sometime in the past
a portion of a plot, which was described in the revenue
records as a ‘tank’, it was not ‘land’ as defined in the
Land Reforms Act and therefore he was not a co-sharer. The
trial court found that the pre-emptor had purchased a
portion of a plot which was a ‘doba’ and since ‘doba’ was a
tank, it was outside the definition of land provided in the
Land Reforms Act. The appellate court concurred with that
view. The High Court, however, in second appeal up set it.
To adjudge the correctness of the View of the High Court are
the present appeals at the instance of the vendees.
Miss Aruna Banerjee, learned counsel appearing for the
appellants has placed before us the English translation of
the deed of sale in favour of the respondent together with
the copy of the original deed in Bengali. There the land
sold to the pre-emptor has been described as "Matsyasheho
Pushkarini" which in English means a tank/pond full of fish.
The learned Single Judge of the High Court in relying upon
an earlier decision of the that Court in Niranjan Das Versus
Lakshmi Mani Dasi, 1986 Calcutta Weekly Note 318 has taken
the view that ‘doba’ does not come within the mischief of
the word ‘tank’ as is apparent from the Wilson’s Glossary of
words. We have caused a copy thereof to be placed before us
and we find therefrom that the word ‘doba’ in Bengali means
immersed, low and swampy or inundated land. The depth of
such land perhaps comes to cause a distinction between a
‘doba’ and a ‘tank’. Apparently the High Court was of the
View that if surface waters be shallow, then the land even
though inundated will retain the character of the land,
bearing at the back of its mind that paddy crop can be grown
in puddled lands. correspondingly, if the depth is more
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which prevents the land being put to agricultural use then
it would be ‘tank’ for the purposes of the West Bengal Land
Refors Act and in particular Section 2(7) thereof, which
defines ‘land’ to be agricultural land, tank being an
exception there to. Now here the land has been described as
‘Matsyasheo Pushkarini’ which apparently would mean a pond
with sufficient water abounding in fish and seemingly it was
so described in the deed of sale in favour of the
respondent. Thus the area owned by the respondent did not
come within the ambit of the word ‘land’ for the purposes of
Section 2(7) of the West Bengal Land Reforms Act 1995 and
therefore the respondent was dis-entitled to claim himself
as co-sharer in the land in order to maintain a claim for
pre-emption. In our view the High Court was in error in
proceeding on the basis that the land purchased by the
respondent was put to agricultural use in the manner which
entitled the respondent to a decree in his favour. We
therefore, upset the judgment and order of the High Court
and order restoration of the judgment and and decres of the
Courts below but without any order as to costs.